Getting the 14th Amendment Right

The Chicago gun case and the fight for economic liberty

When the Supreme Court hears oral arguments on March 2, 2010 in the landmark gun rights case McDonald v. Chicago, the Second Amendment won't be the only thing on the justices' minds. That's because when it comes to protecting constitutional rights from the depredations of state and local governments, the Court must obey the 14th Amendment, which commands: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law."

McDonald will therefore turn on whether the right to keep and bear arms applies to Chicago via the 14th Amendment's Privileges or Immunities Clause or via its Due Process Clause. That distinction matters because the Privileges or Immunities Clause has been a dead letter since the controversial Slaughterhouse Cases of 1873, which gutted the clause while upholding a state-sanctioned slaughterhouse monopoly in Louisiana. And despite overwhelming historical evidence that the Privileges or Immunities Clause was specifically written and ratified after the Civil War in order to secure individual rights against state abuse—including the right to armed self-defense—Slaughterhouse has never been overturned.

So the stakes in McDonald are high indeed. And they aren't just limited to gun rights.

Consider this: Among the legal experts lining up in support of overturning Slaughterhouse and reviving the Privileges or Immunities Clause is liberal law professor Akhil Amar of Yale University. Nobody's idea of a gun nut, Amar is a supporter of progressive politics. And in his opinion, so were the authors of the Privileges or Immunities Clause. "The framers of the 14th Amendment were radical redistributionists," Amar toldThe Wall Street Journal. "The 13th Amendment frees the slaves and there's no compensation. It's the biggest redistribution of property in history." Under this interpretation, the privileges or immunities of citizenship might include the right to health care, to a living wage, or to some other welfare right fancied by today's progressive activists.

It's a clever argument, but it doesn't hold up. Amar conveniently ignores the 14th Amendment's origins in the free labor philosophy of the Radical Republicans, who drafted and spearheaded its ratification in 1868. Remember that the anti-slavery movement that produced those Republicans rejected human bondage as a violation of natural rights, or as the abolitionist William Lloyd Garrison put it, "man cannot hold property in man." The escaped former slave Frederick Douglass made the same point in the famous letter he wrote to his former master. "You are a man and so am I," Douglass declared, echoing the Lockean idea of possessing a property right to your own body. "In leaving you, I took nothing but what belonged to me, and in no way lessened your means for obtaining an honest living. Your faculties remained yours, and mine became useful to their rightful owner." That's not redistribution, it's restitution. Douglass simply reclaimed his own stolen property from the unjust regime that took it.

In the aftermath of the Civil War, the former Confederate states sought to resurrect that vile regime with a web of laws and regulations that robbed the freed slaves (and their white allies) of their civil, political, and economic rights. Mississippi's Black Code, for example, declared "that no freedman, free Negro, or mulatto…shall keep or carry firearms of any kind," while Louisiana's Black Code mandated that, "Every negro is required to be in the regular service of some white person, or former owner, who shall be held responsible for the conduct of said negro."

That's the historical context that produced the 14th Amendment. As the Institute for Justice writes in the friend of the court brief it filed in McDonald, "To enslave a class of people requires three basic things: destroy their self-sufficiency, prevent them from fighting back, and silence any opposition. Southern states did all of those things both before and after the Civil War, and the point of the Fourteenth Amendment was to make them stop."

In sum, the 14th Amendment was designed to protect an individualistic and market-oriented form of self-ownership, one that includes the right to armed self-defense, the right to private property, the right to liberty of contract, and the right to pursue an honest living free from arbitrary and unnecessary government interference. That's the libertarian promise of the Privileges or Immunities Clause. And that's why Tuesday's arguments in McDonald v. Chicago matter for both gun rights and economic liberty.

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A few offhand references to cases dismissing the P & I Clause (its precedent, doncha know), and then off to the bizarre game of evaluating cases like this under the Due Process Clause, which gives them much greater scope to get all legislatey with weighing of burdens and what-not.

Prediction:

(1) P & I gets blown off.

(2) 2A is incorporated in line with previous decisions about other BOR.

(3) A mountain of mush about what kinds of regulation are perfectly OK under the incorporated 2A.

I’m not sure what you mean when you say that Amar is “[n]obody’s idea of a gun nut.” I don’t know what Amar does with his spare time, or how many guns he’s got at home, but he’s been on record for years as supporting robust gun rights, which he argues the framers of the Fourteenth Amendment saw as crucial sources of protection for freed slaves.

If you read Amar’s 1999 book “The Bill Of Rights”, it’s obvious he doesn’t like the pro-gun quotes by Bingham and company he’s reporting. To his credit, he still reports them. In that same book, he also put in a half-hearted, snarky comment that maybe flintlocks are covered by the 2nd Amendment.

When I spoke to him in 2002 I praised him for the book but pointed out a few details about the state of weapons development in 1868 when the 14th was passed: the Mormons had invented the snub-nose revolver, the Gatling Gun was shipping in quantity and 15shot leverguns were in common circulation. He looked downright queasy :).

Now, for all I know he’s changed since, maybe has a CCW permit, packs daily and plinks with a Bushy on the weekends. But as of 1999-2002 era, yeah, forget it.

But remember, we “gunnies” respect the hell out of him for backing an intellectual position even though it disturbs him.

I wouldn’t be so quick to blow off the possibility of P&I being seriously considered. Of allllll the cases they Court could have chosen, the picked the one that used this route. Also, considering that cert requires the approval of four justices, already a minority is presumably in favor of it, plus Kennedy who is arguably pretty libertarian compared to the others on civil rights. (Granted, on the SCOTUS that’s not saying a lot.)

Anyway , I’m glad the author called out Amar on the redistribution thing. That’s like saying someone who kidnaps a person for years and assaults them deserves a refund rather than arrest. Take away ex post facto, and slave owners would have had a lot more to worry about.

Adam, good point on the redistribution thing. Doesn’t claiming that freeing slaves redistributes the value of the slave from the owner to the slave essentially means accepting the legitimacy of slavery? The correct model, as you point out, is kidnapping not some bizarre Marxist economic argument.

The question of free enterprise in the Commerce Clause was over private property and wheat. Time to give the farm back, don’t you think DC?

Appears some bleedover onto the 2nd and as for the 14th, it wasn’t wrote by James Madison, that is for sure. The fourteenth provides the privileges of the U.S. Constitution in defense from the Federal Government onto the Citizen under all Government. The 2nd amendment must be recognized by all.

Thus we find our Nation’s Citizens up in arms about the encroachment of the Federal Government, Teaparty for Liberty Movement growing with every DC action.

This and all Court Cases are being sifted by the Constitution now, so best be about what Alexander Hamilton said about Judicial ‘Good Behavior’ in Federalist #78, “Fundamental interpretation”.

I haven’t seen this addressed, and I guess this is as good a place as any. Within days of the Citizens United ruling, some of my state’s legislators introduced bills to essentially do the very things that were ruled unconstitutional. My question is, since they are not “Congress”, can they get away with it, or, as I would think, doesn’t the 14th’s P&I prohibit them from making any law that Feds also can’t make? the only other thing I can think of is warped reading of the 10th.

My question is, since they are not “Congress”, can they get away with it, or, as I would think, doesn’t the 14th’s P&I prohibit them from making any law that Feds also can’t make? the only other thing I can think of is warped reading of the 10th.

The 14th Amendment prohibits infringement of rights without due process of law, and freedom of speech is a recognized right.

I’m afraid they have decided that they are the bosses and we now must listen and OBEY, them.

The routinely ignore, without consequence, anything the wish concerning the Constitution and bill of rights.

It would seem unwise to rely upon courts who have been appointed by those who have brought this upon us. Actually it strikes me as nothing short of stupid. For these people, there’s always another back door, another means to accomplish their objectives.

They really just don’t care about “our” Constitution because it belongs to us and not them. It hampers them and the fact is, they’ve become accustomed to ignoring it.

It would be a very bold stroke to overrule Slaughterhouse- but then again that case ranks with Dred Sciott, Plessey and Korematsu in the judicial Hall of Shame. One of the great tragedies of the history of Constitutional jurisprudence was that, confronted with the epic wrongness of Slaughterhouse, the Warren Court bowed to a weak-form stare decisis and tried to re-invent P&I under the dubious and slippery rubric of ‘substantive due process’- and intellectual and policy abomination.

As the column below shows, unintended consequences bulk large in this case:

A Charter for Violence?

by George W. Liebmann

A century and a half ago, George William Brown, a former Mayor of Baltimore, successfully argued against inclusion of a right “to bear arms in defense of himself and the State” in Maryland’s still-applicable 1867 Constitution:

“It would be a dangerous thing to insert this declaration. Everyone who knows anything about criminal law knows that it is a presumption of evil intent to go about armed. Why should they declare this principle in these civilized times? It is the usage of barbarians, not of enlightened people. If this broad declaration were put in the Bill of Rights, he did not see how you could disarm any man, drunk or sober, as he could throw himself on his reserved rights.”

Brown came by this conclusion honestly. He had been active in organizing a militia to suppress the Bank of Maryland riots in 1835, and in removing Baltimore’s police force and elections from Know-Nothing control. In April 1861, he had risked his life while escorting Union troops through an armed confederate mob; thereafter he had been imprisoned without trial for 15 months for refusing to accede to military rule of his city, refusing on principle all offers of amnesty as a protest against military dictatorship.

The Mc Donald v. Chicago case now before the Supreme Court seeks to read into the Fourteenth Amendment the right that Maryland’s constitution-makers consciously rejected, thus rendering nine justices and not state and local legislatures the policymakers in issues relating to gun control.

In the recent Heller case the Supreme Court properly held that the Second Amendment conferred private rights precluding at least extreme forms of federal interference with gun ownership. The Constitution and Bill of Rights were directed against the re-creation on American soil of a standing army or national police like that of the Earl of Stafford under Charles I, and also aimed to prevent ‘new modelling’ of a national army along Cromwellian lines. Hence they imposed restrictions on length of military appropriations, provided for Senate approval of nominations of military officers, reserved to Congress the power to declare war and make rules for military forces, barred quartering of troops on the people, limited federal call-ups of the militia, and in the Second Amendment prevented disarmament of the citizenry by the national government. Madison in Federalist No. 45 makes clear that policing was to be a local function, and St. George Tucker’s influential 1803 edition of Blackstone affirmed that “crimes and misdemeanors if they affect not the existence of the federal government or those objects to which its jurisdiction expressly extends, however heinous in a moral light, are not cognizable by the federal courts.” This has remained the general understanding, save for the aberrations of national prohibition and the ‘drug war’; there are ten times as many local law enforcers as federal ones.

The pending case would change that. It would deny to states and localities the right to keep order in their own house. Long standing regulations of gun ownership like the Sullivan Law in New York, the basis, along with stop-and-frisk policing, of recent sharp declines in crime rates, would be under attack. While suburbs and rural areas benefit from widespread gun ownership with burglary rates far lower than those of England, its effect in cities, as Attorney General Edward Levi observed, is less benign. Local discretion supplies the answer, but to the extent that local law enforcement is rendered more ineffectual, demands for federal or even military intervention will arise. The purpose of the Second Amendment will have been stood upon its head.

Nor is this all. While many states have constitutional provisions relating to arms, some of which have been construed as conferring private rights, a Supreme Court pronouncement declaring federal constitutional rights would be the fountainhead of new claims, asserting the right to “bear arms” as well as “keep” them. Statutes precluding arms in public places would be under attack, and efforts made to assert collective rights as well as individual ones: those of neighborhood vigilantes, private militias, and even the political armies that disfigured Europe in the 1930s. In Weimar Germany the courts flouted what Franz Neumann called the principle that “coercive power must be a monopoly of the State through its army and police, that not even under the pretext of serving the state may a private group or individual take arms in its defense unless summoned to do so by the sovereign power.” American courts would turn many such claims aside, but uncertainty would be introduced where it did not exist before, as would political frustration and political self-righteousness. “Right”, the Harvard philosopher William Hocking once observed, “is psychologically a claim whose infringement is met with a resentment deeper than the injury would justify, a resentment that may amount to passion for which men will risk life and property as they would never do for an expediency.”

Ominously, a plethora of groups not hitherto interested in gun control issues have enlisted in the current effort to expand the privileges and immunities clause of the 14th amendment into new and uncharted territory. Many of these folk decried the activism of the Warren Court, but see themselves as the masters now. This calls to mind a reflection on the Georgia governorship of the late Eugene Talmadge: “The big bugs courted the hookworms/ And their clandestine embrace/ Produced a Governor of Georgia/ Who raised hell all over the place.” What is sought is a decision, even a 5-4 decision, which over a wide sphere will replace government by discussion with government by decree. The cautionary words of Learned Hand, addressed to the expansions of the 14th amendment that gave us Roe v. Wade and like decisions, have their fullest pertinence here: expansion will generate “frictions undreamed of by those who avail themselves of this facile opportunity to enforce their will.”

—

The writer, a Baltimore lawyer and recently vising fellow of Wolfson College, Cambridge, is the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books, 2005) among other works.

Your reading of the Federalist Papers is both blatantly, and horribly, selective at best. Your phantasmagorical imaginations of consequences dire is quite frankly amusing.

For the reasonable reader, keep in mind that NO right has ever been held so sacrosanct as to preclude any proscription against a breach of the peace.

The intent of our Constitution is to preserve the liberties of the individual citizen. The framers explicitly meant for the people to turn to the States if the Federal authority infringed upon their rights, and to that same Federal authority if their State committed the infringement.

uhhh… OK, guys – – the slaughterhouse cases did not “gut” the 14th amendment. That was one case the supreme court got RIGHT. As libertarians, we might WISH the law said that all people have all their civil and economic rights, but the 14th amendment just doesn’t say that.

Furthermore, even with the slaughterhouse-based interpretation of the 14th, the 14th still does indeed incorporate the 2nd against the states. The 2nd counts as a federal right. Not saying the SCOTUS will find it this way – they’re massively full of sh*t – but the plain English, and the interpretation that the 14th incorporates the bill opf rights against the statews, says it.

The Second Amendment stands on its own and needs no help from the 14th Amendment. The Second Amendment, if we read the desire of those who placed it into the Constitution, was intended for use by the states and its citizens, and was to arm the states and its citizens to protect them from an abusive central government. The state governors were empowered by this amendment to raise up ‘well-regulated’ state militias to defend themselves against an abusive central government and other states who may have a cause against them.

The civil war initiated an improper use of militias. The North used its militias against the militias of the South to ‘impose’ their will against the Southern States in defending their ‘state’s rights’ under the original federalism promoted by the Constitution. The North used ‘slavery’ as an excuse to fight the South, as the North could not compete against cheap labor the slaves provided.

When we understand the proper intention of the Second Amendment, we find the 14th Amendment only a hindrance in weakening the Second Amendment by using it as a crutch to ‘support’ the Second.

The economic friction between the States that led to the Civil War are far more complicated than the economic value of slave labor. Much discussion was had over tariffs on foreign manufactured goods and Southern cotton that was shipped to Europe.

The class of plantation owners controlled the Southern state legislatures and used that control to protect their interests. This was to the severe detriment of all other classes of persons -slave or free- in the South. When this fight extended into the balance of power in the Federal Congress, we first got “bleeding Kansas” and then the Civil War.

Thanks for commenting on my post. I am a historian and I did not want to post a long treatise on the causes of the civil war, which began much earlier in the history of our republic. BTW, I live in ‘Bleeding Kansas.’

In simplified form, the 1st states that “Congress shall make no law”, but there is no specified target in the 2nd’s “shall not be infringed”. Therefore, would not the 2nd be addressed to all government entities? ***not a lawyer, just a reader of words***

So the 14th Amendment is to provide methods of implementing freedom for the newly-freed slave? When do ‘Mancipation come? The bosses brilliantly and temporarily (about 12 years of the military governments) then have spent the subsequent 150 years enslaving those formerly free. When do we get our freedom??

As I understand it, a “contractual” libertarian would: . 1) Interpret the 14-th as protecting only Contracts, Speech, and “Guns” and . 2) Eliminate the “over-reaching” commerce clause, thus, returning to essentially an early Federalist US, with, except for “1)”, little interference with States actions from the Supreme Court or the Federal Government, e.g. No requirement that the States “honor” the national Constitutional “protections” in other areas. Am I correct, or is this setting up a straw man?

Not a legal scholar but … the 14th created several classes of “citizen” – the blacks were freed by the feds, and were only “US Citizens,” as are those who immigrate to the US, or otherwise given citizenship. Then there are those born in one of the 50 states who have state and federal citizenship, and finally those who were born and/or reside in a territory or possession who may have “US” and territorial citizenship.

And who’s on first plays an important role in many of the federal laws and regs, such as Internal Revenue. But, this is off point.

When I spoke to him in 2002 I praised him for the book but pointed out a few details about the state of weapons development in 1868 when the 14th was passed: the Mormons had invented the snub-nose revolver, the Gatling Gun was shipping in quantity and 15shot leverguns were in common circulation. He looked downright queasy :).

Now, for all I know he’s changed since, maybe has a CCW permit, packs daily and plinks with a Bushy on the weekends. But as of 1999-2002 era, yeah, forget it.

But remember, we “gunnies” respect the hell out of him for backing an intellectual position even though it disturbs him.

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